Guy v Yek

[2010] TASSC 34

[2010] TASSC 34

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Guy v Yek [2010] TASSC 34

PARTIES:  GUY, Barry
  v
  YEK, Ging Ging

FILE NO/S:  LCA 734/2009; LCA 735/2009
DELIVERED ON:  12 July 2010
DELIVERED AT:  Hobart
HEARING DATE:  21 May 2010
JUDGMENT OF:  Tennent J

CATCHWORDS:

Magistrates – Appeals and review – Tasmania – Motion to review – The hearing – Generally – Application of the Crimes Act 1914, s19B(1) – What are extenuating circumstances.

O'Brien v Norton-Smith (Mr) Pty Ltd (1995) 31 ATR 128; Commissioner of Taxation v Baffsky (2001) 122 A Crim R 568, applied.

Magistrates – Appeals and review – Tasmania – Motion to review – The hearing – Generally – Whether penalty in Commonwealth matter manifestly inadequate.

Criminal Code Act 1995 (Cth), s137.2(1).
Crimes Act1914 (Cth), ss16A, 19B.
Aust Dig Magistrates [272]

REPRESENTATION:

Counsel:
             Applicant:  I M Arendt
             Respondent:  G A Richardson
Solicitors:
             Applicant:  Commonwealth Director of Public Prosecutions
             Respondent:  G A Richardson

Judgment Number:  [2010] TASSC 34
Number of paragraphs:  17

Serial No 34/2010
File Nos LCA 734/2009

LCA 735/2009

BARRY GUY v GING GING YEK

REASONS FOR JUDGMENT  TENNENT J

12 July 2010

1. The respondent was a qualified pharmacist operating from a pharmacy business she owned in Burnie. She was charged on two complaints numbered 93716/06 and 92939/06 with 39 counts of producing false and misleading documents to the Health Insurance Commission, contrary to the Criminal Code Act 1995 (Cth), s137.2(1). She pleaded not guilty, but was found guilty by a magistrate. She was sentenced on 27 July 2008. She was sentenced globally. Pursuant to the Crimes Act 1914 (Cth) ("the Act"), s19B, the learned magistrate discharged the respondent without proceeding to conviction upon the respondent giving security without sureties by a recognizance in the sum of $500 that she be of good behaviour for a period of two years.

1. The applicant has now sought to review the sentence on the following grounds:

"1The Learned Magistrate erred in fact and in law in finding that the offences were committed under extenuating circumstances within the meaning of that phrase in Section 19B(1)(b)(iii) of the Crimes Act 1914 (Cwlth).

2The Learned Magistrate in discharging the Respondent without conviction imposed a sentence which was manifestly inadequate in all the circumstances."

The facts

1. When a pharmacist is presented with a script or a repeat authorisation, and dispenses a product in accordance with that script or authorisation, and the product is one in respect of which a pharmacist may be entitled to make a claim for a pharmaceutical benefit from the government, the pharmacist, to obtain the benefit, must complete a claim form and submit it to the Health Insurance Commission. Any such claim is required to be accompanied by the script, or a repeat authorisation pursuant to that script, with a certification on it to the effect that the recipient of the product has received the product. That certificate is to be signed by the recipient or their agent.  Where a recipient of the product is unable to sign the certification, a pharmacist or their representative may sign the relevant document but must indicate they are doing so in place of the recipient and why.

1. In this case, what the respondent was doing was either personally signing the certification without an indication that it was not the recipient's signature or having members of her staff do so. She was then submitting the claims to the Health Insurance Commission. In doing so, the respondent was in breach of the relevant legal requirement and committed an offence. The respondent did not dispute that factual basis for the charges against her.

1. The respondent's explanation for adopting the practice that she did was that she had been trained in a pharmacy in Western Australia which regularly adopted this practice and that, when she purchased the pharmacy in Burnie, the pharmacist from whom she purchased the pharmacy also adopted the practice.

The statutory scheme and the reasons of the learned magistrate

1. The learned magistrate examined the scheme in his reasons for finding the charges against the respondent proved. He determined that the elements of the relevant offence were that the defendant produced a document to another person, knowing that the document was false or misleading, and the document was produced in compliance or purported compliance with a law of the Commonwealth. His Honour then examined the element which was the central issue in the proceedings, that being the element of knowledge. He identified the evidence given by the respondent where she acknowledged that the certificates were false and then made a finding, not challenged on this review, that he was satisfied that the various documents were false, and that the respondent knew it. He then addressed an argument raised by counsel for the respondent to the effect that the relevant section under which the respondent had been charged required proof of fraud.

1. The learned magistrate concluded that the applicant did not have to establish fraud on the part of the respondent, merely knowledge that the document was false or incorrect. After hearing submissions as to sentence, during which counsel for the applicant made reference to the Act, s19B, the learned magistrate passed sentence. His comments relevantly are as follows:

"Well I've considered the submissions of the prosecutor and defence counsel.  I have regard to the nature of these offences.  I have regard to the circumstances and I have regard to the defendant's personal circumstances.

I note the proposition put by learned counsel for the complainant as to the non applicability of s19(b) however I do not accept them.

Viewing that provision s19(b)(I), (b)(I) and (III) appear to me to be the relevant considerations.  As to Roman numeral (I) the character antecedent's age health and mental condition of the defendant, I accept that she's a person of good character.  She is a registered pharmacist and that alone I infer, speaks to her character to some extent.  I observe that she's 35 years of age.  She has appeared previously in respect of a matter that was resolved in this Court by another Magistrate on the 16^th March 2006; an offence that occurred on the 27^th July 2004.  An offence that did involve a breach by her of her duty as a pharmacist but as I've already indicated, was essentially different in kind from those upon which she appears today.

More pertinently however, I think is that the offences with which I am dealing which are contained in two separate complaints occurred between October of 2000 and September of 2004.  That is the last of them, one or two years before she appeared in this Court in March of 2006. 

So to that extent, the matter of being a pharmaceutical chemist and failing to keep a narcotics register is not a prior matter for relevant purposes accordingly I do not treat it as such.

Returning to the other matters that have been raised, it is true that she did not plead guilty to these charges and I accept the reasons that defence counsel has put forward to that in that she believed that she had not committed an offence albeit incorrectly.  That is relevant to another matter that pertains to the exercise of the Court's very broad discretion and that is that I observed that she gave evidence in her defence in which she was seeking to justify her conduct albeit unsuccessfully, on the basis that over a long period of time and in various places throughout Australia, she believed that she was because of those experiences, adopting a practise that was acceptable.

Further I observe that these offences do not involve elements of dishonesty and I, of course, do not impute that to her.  She was engaged in forwarding requests for payment which she believed albeit wrongly, as a matter of law, complied with the law.  She did not do so dishonestly and she did it in accordance with the practise that she assumed was proper.

Those facts to me draw the teeth very substantially of the prosecution argument that s19(b) ought not to have application.

I am alert to the prosecution involving the Pharmacy Board.  I note Crown counsel submission as to that.  Defence counsel's submission and the letter which has been handed up. I go no further than saying that I am now alert to the fact of those proceedings.  I cannot speculate as to the outcome and it would be quite wrong to do so.  However I do take the fact of their existence into consideration in – bearing in mind that doubtless that will be stressful and is stressful upon the defendant in that it could potentially, result in her being removed from the register of those entitled to practise pharmacy.

There is the matter that she also has a potential liability of several thousands of dollars and has learned defence counsel has put, the affect of such an order would be to transfer to her personally, the cost of medication which she supplied, I find, in good faith to her customers pursuant to prescriptions and repeat authorisations.

Of course I must address the matter of deterrents and pharmacists generally must not be encouraged to believe that the multiplicity of laws that apply to them can be disregarded with impunity.

Having regard to the course of these proceedings, I would have thought that for most pharmacists, that the mere fact of these proceedings, that they have been taken by the Commonwealth and brought by the Commonwealth to a successful completion, would in itself, be a deterrent from conducting themselves in the way in which the defendant conducted herself on these occasions.

I don't accept that these offences are trivial.  However, I am satisfied that her character and antecedents, age, are relevant matters to take into account.  I accept that the offences were committed under the extenuating circumstances to which I have referred and that in all the circumstances, in exercise of the broad discretion with which this Court has been entrusted by the Commonwealth Parliament, it is appropriate that on each of the two complaints, that they be dealt with under s19(b). I discharge her without conviction in respect of the groups of charges in each of the two complaints upon her giving security, without surety in the sum of five hundred dollars in respect of each complaint, on condition that she will be of good behaviour for a period of two years from today and of course, that order applies globally but it applies globally to each of the two complaints."

The relevant provisions of the Act

1. The maximum penalty for each contravention in this case was 12 months imprisonment and a pecuniary penalty of $6,600. The learned magistrate nevertheless retained a broad sentencing discretion. In exercising that discretion however, he was required to have regard to certain provisions in the Act, in particular, the various factors identified in s16A. In this case, his Honour also utilised the Act, s19B. That section relevantly provides:

"19B   Discharge of offenders without proceeding to conviction

(1)            Where:

(a)  a person is charged before a court with a federal offence or federal offences; and

(b)  the court is satisfied, in respect of that charge or more than one of those charges, that the charge is proved, but is of the opinion, having regard to:

(i)the character, antecedents, age, health or mental condition of the person;

(ii)  the extent (if any) to which the offence is of a trivial nature; or

(iii)the extent (if any) to which the offence was committed under extenuating circumstances;

that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation;

the court may, by order:

(c)  dismiss the charge or charges in respect of which the court is so satisfied; or

(d)  discharge the person, without proceeding to conviction in respect of any charge referred to in paragraph (c), upon his or her giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he or she will comply with the following conditions:

… "

1. Counsel for the applicant submitted that, for the learned magistrate to invoke s19B, he had to be satisfied about two things. Firstly, he had to be satisfied that one or more of the factors identified in s19B(1)(b)(i), (ii) and (iii) existed. He then had to be satisfied, assuming he was satisfied as to the existence of one of the factors identified, that, having regard to the factor or factors found to exist, it was inexpedient to inflict punishment. If he was satisfied as to both of those matters, there was then a discretion to exercise. At that point, the learned magistrate was obliged to consider the s16A factors and general deterrence. Those submissions are in accordance with the accepted approach to sentencing by reference to s19B. I did not understand counsel for the respondent to join issue with that approach.

The applicant's submissions

1. In relation to the issue of extenuating circumstances, counsel for the applicant submitted that the fact that the respondent was, as he put it, following the unlawful conduct of other pharmacists, was not extenuating. He also submitted that the learned magistrate erred in concluding it was inexpedient to inflict punishment because:

-    he was dealing with 39 counts committed over four years,

-    the respondent had obtained $37,000 which as a matter of law she was not entitled to,

-    there was no indication of contrition on the part of the respondent in that none of the money had been repaid and she had pleaded not guilty,

-    the respondent did not have available to her the substantive mitigating benefit of a plea of guilty,

-    there was nothing remarkable about her character or antecedents, and

-    disposing of the matter in the way the learned magistrate did undermined the scheme of the legislation and would encourage other pharmacists to commit similar offences.

1. Counsel for the applicant also submitted that, while accepting that fraud and dishonesty were not elements of these offences, the respondent's motive for signing or having her staff sign these certifications was relevant in determining penalty. He identified her motive as being to obtain payments from the Health Insurance Commission to which she was not entitled. He emphasised that entitlement to payment only arose upon submission of documents signed by the recipients of the products dispensed and not otherwise.

Conclusion

1. To succeed on this review the applicant must demonstrate error on the part of the learned magistrate. The first specific error identified was the finding of the learned magistrate that the offences were committed under extenuating circumstances. Counsel for the applicant identified extenuating circumstances as circumstances which excuse in some appreciable degree the commission of the offence, or in some way lessen a respondent's guilt. He did so by reference to what he said were remarks of Wright J in O'Brien v Norton-Smith (Mr) (1995) 31 ATR 128, at 131. In fact, the words came from a case of Lanham v Brake (1983) 34 SASR 578, quoted by Wright J, where Cox J said, at 583:

"The definition of 'extenuate', appropriate for par. (b) (iii) of s. 19B (1) of the Crimes Act, is 'to lessen, or seem to lessen, the seeming magnitude of (guilt or offence) by partial excuses' (SOED).  Cf. Nitschke v Halliday (1982) 30 SASR 119 at 122."

1. The learned magistrate canvassed a number of matters in his reasons, and then at AB265 line 36 said:

"I accept that the offences were committed under the extenuating circumstances to which I have referred … "

The learned magistrate however did not specifically identify which of the factors he had canvassed amounted to extenuating circumstances within the meaning of the Act, s19B(1)(b)(iii). For him to invoke s19B(1)(b)(iii), he would need to be satisfied that any circumstances he identified as extenuating were linked to the offending (See the remarks of Spigelman CJ in Commissioner of Taxation v Baffsky (2001) 122 A Crim R 568, at par[47].)

1. It seems obvious from the reasons of the learned magistrate that the circumstances linked to the offending which he found to be extenuating were that the respondent had committed the offences by carrying out a practice she believed, albeit wrongly, did not involve illegality. She followed a practice she was trained to use and one adopted in the pharmacy she took over. The learned magistrate considered this issue, and concluded such circumstances were extenuating for the purpose of the section. It was clearly a judgment he made, based on the facts before him. In making his determination, the learned magistrate no doubt took into account that, while the respondent breached the legal requirements associated with making claims for payments of pharmaceutical benefits and thereby obtained a payment,

-    there is no suggestion she did not provide the products for which she received payment,

-    had she complied with the certification requirements, and there was no suggestion she could not have, had she made the effort to do so,  she would have been entitled to payment,

-    she did what she did knowing the information she provided was false but believing that it was an acceptable practice.

With respect, counsel for the applicant has not demonstrated that his Honour's determination was wrong.

1. The remaining issue raised by counsel for the applicant was that the sentence imposed by the learned magistrate was otherwise manifestly inadequate. The arguments advanced in support of this ground of review were all arguments addressed to the learned magistrate. There has been nothing put on this review, particularly in light of my finding as to the ground relating to extenuating circumstances, which could possibly demonstrate an error on the part of the learned magistrate such as to result in this second ground succeeding. His Honour dealt with relevant s16A factors, he considered the plea of not guilty but recognised the reasons for it, and he considered deterrence (see AB265 lines 23 – 33).

1. Counsel for the applicant did refer to the fact that the respondent had not repaid the monies she had received. He did so on the basis that it demonstrated a lack of contrition. With respect, the learned magistrate dealt with the issue of monies being claimed by the applicant at AB 265 lines 17 - 21. Counsel's submission in this regard appears to ignore the somewhat unusual circumstances of this case, namely that a payment of the monies claimed by the Commonwealth as a consequence of the finding of guilt would have the practical effect that the respondent would be paying personally for products dispensed by her to customers. It also ignores the reason why the respondent pleaded not guilty and took this matter to hearing, and that she did not largely dispute the factual basis of the charges despite her plea.

1. Taking those matters into account I am not satisfied the applicant has made out ground 2 of the review. The notice to review is, in the circumstances, dismissed.